justice are still alive
and well in this small country of ours!
Last Monday may not be recognised as a watershed in Sri
Lankan legal history but perhaps it should be. For, it was on
Monday that the Supreme Court annulled the sale of Lanka Marine
Services Limited to John Keells Holdings, declaring that the
deal was ‘illegal, unlawful and arbitrary.’
And, for good measure, the Court ordered Treasury Secretary P.
B. Jayasundera to pay a sum of five hundred thousand rupees to
the state as compensation for wrongful acts while John Keells
Holdings was ordered to pay Vasudeva Nanayakkara, the veteran
politician-turned-presidential advisor who brought the
fundamental rights case, two hundred and fifty thousand rupees
Of late, at a time when most institutions in the country are in
a state of apathy and decline, the Supreme Court has taken upon
itself the mantle of being a public defender. This judicial
activism-perhaps never seen before in this country-has caught
many by surprise and has also caught them in the act on several
The highest court in the land, led by a Chief Justice who is not
afraid to speak his mind and matches his words with his deeds,
has acted previously on a variety of issues in the public
interest: it intervened in grade one school admissions, it
thwarted a strike by teachers and it stepped in to outlaw
permanent military checkpoints.
The Court has also had the courage to stand up to the
authorities when the circumstances demanded; it did not hesitate
to declare that removing and transporting persons from the Tamil
community arbitrarily from lodges in Colombo was illegal,
despite the orders coming from the high echelons of power.
Therefore, Monday’s verdict should hardly be surprising. But
then, it is refreshing for a variety of reasons and for a nation
which is almost resigned to its fate, it offers renewed hope
that all is not lost.
Firstly, the action was initiated by Vasudeva Nanayakkara as a
fundamental rights application - not in his capacity as a
politician, trade unionist or presidential advisor. What this
means is that the average citizen -you and me- could do so too
and challenge the decisions of the high and mighty, if we
believe that it is in the public interest.
This may, of course, not be a practical course of action for the
average person in this country, but Monday’s ruling emphasises
the fact that if the need is great, citizens should not doubt
that the pathway for redress exists.
Then, the Court also held the present Secretary to the Treasury
personally responsible for what transpired, which is why he was
asked to pay ‘compensation’ of five hundred thousand rupees. It
is an enlightened and emboldened decision by the court, for it
sends a powerful message to the bureaucracy - that they are
accountable for what they do, regardless of why they do it and
even if they are doing it as a ritual to appease their political
gods to ensure their survival in high places.
The verdict also brings in to focus the issue of probity among
public officials. In this verdict, the court made 19 orders, of
which most are against Treasury Secretary, in his then capacity
as Chairman of the Public Enterprise Reform Commission. It also
held that as a result of the land deal, the government had lost
a vast amount of revenue.
It is a verdict that the Secretary to the Treasury should
consider seriously and decide what he should do in its
aftermath. Whether the public will have confidence in seeing
such an official continue in office is a moot point. Now, all
his decisions will be viewed with circumspection.
It is therefore debatable whether such a highly placed official
could now function independently and efficiently. We are certain
the Secretary to the Treasury will arrive at an appropriate
decision of his own, but some times, it may be better to leave
while people are still asking why you are leaving instead of
waiting until they ask you why you are not leaving, but we must
surely leave that for the Secretary to decide.
The other issue that must arise from the verdict is whether
there would be other repercussions as a result. If the
transaction was ‘wrong and fraudulent’ as the Court sees it and
if the state lost millions or billions of rupees in revenue,
would this amount to misappropriation? And if that is indeed the
case, shouldn’t those responsible be prosecuted by the state?
Eager legal eagles will no doubt ponder this issue but the
question is whether the wheels of justice will turn swiftly
enough for such a process to become reality.
There is of course, irony written all over the verdict as well.
The man who brought the action to court is an advisor to
President Mahinda Rajapaksa. The President is the Minister of
Finance whose Secretary has now been found fault with. And among
those cited as respondents are Ministers Karu Jayasuriya and
Milinda Moragoda who were then ministers in the United National
Party government but are now ministers in President Rajapaksa’s
This might suggest that there are wheels within wheels and that
it is a tangled web that has been woven. But then, that is all
the more reason why last Monday’s verdict of the Supreme Court
should be hailed: the court has ignored all these intricacies
and decided the issue only on its merits. It does suggest that
democracy and justice are after all, still alive and well in
this small country of ours!